Brown Services, Inc. v. Fairbrother

• Decision Date: 31 August 1989
• Docket Number: No. 13-88-289-CV,13-88-289-CV
• Citation: 776 S.W.2d 772
• Parties: BROWN SERVICES, INC., Appellant, v. Thomas W. FAIRBROTHER, JR., Appellee.
• Court: Texas Court of Appeals

Page 772

776 S.W.2d 772

BROWN SERVICES, INC., Appellant, v. Thomas W. FAIRBROTHER, JR., Appellee.

No. 13-88-289-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 31, 1989.

Rehearing Denied Oct. 5, 1989.

Jack L. Allbritton, Fulbright & Jaworski, Houston, for appellant.

Robert G. Taylor, II, Houston, for appellee.

Before SEERDEN, UTTER, and KENNEDY, JJ.

OPINION

SEERDEN, Justice.

Appellee was injured while working to modify the derrick of a jack-up drilling barge in the territorial waters of Trinidad. The issues on appeal relate to his remedies.

Appellee sued his employer (appellant, Brown Services), Reading and Bates Drilling Co., which operated the jack-up rig, and Amoco Trinidad Oil Co., which had hired Reading to drill offshore wells, among others. Reading had contracted with appellant to modify the derrick to meet Amoco's drilling specifications. Appellee, by his Fourth Amended Petition, pleaded causes under general maritime law, the Jones Act, 46 U.S.C.A.App. § 688, and "any and all other applicable law." The petition explains that he was working at the top of the rig, balanced on the derrick framework, when a pipe fell from above, partially amputating his leg in the shin area. Appellee alleged that the unseaworthy condition of the rig was a proximate and/or producing cause of his injures and damages and alleged various acts of negligence.

Appellee settled with Reading and Amoco for $1,400,000 before trial, and received $1,050,000 from appellant's insurers. After a bench trial, the court found appellant 100% negligent, exonerating Reading and Amoco, found damages of $2,400,000, added prejudgment interest of $426,987, credited $1,050,000, and entered judgment for $1,776,987. We affirm.

Appellant's first point challenges the trial court's finding that appellee was a "seaman and member of the crew" of the G.H. GALLOWAY, and its second point argues that general maritime law was inapplicable, alleging a lack of a sufficient "maritime nexus" between appellee and his work for the injury to constitute a "maritime tort." In its fourth point of error, appellant claims that the trial court erred in failing to credit the $1,400,000 settlement against the judgment.

In oral argument, appellee conceded that Hernandez v. M/V Rajaan, 841 F.2d 582 (5th Cir.1988) decided after the trial but before the entry of judgment, allows a party only one recovery for his injuries in a maritime injury case and that any award must be reduced by any settlements, without regard to whether the settling defendants are ultimately found at fault. Since appellee had been paid sums in excess of $2,400,000, he acknowledges that the questions raised in points of error one and two are not controlling on this appeal. Since the matters raised by appellant's points one and two are not necessary to the final disposition of this appeal, we will limit our discussion to the remaining points raised by the parties. Tex.R.App.P. 90(a).

Point three complains of the trial court's alternative conclusion that appellee had a common law action against appellant, and that the exclusive liability provisions of the Texas Workmen's Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8306(3) (Vernon 1967 and Supp.1989), did not protect it. Appellant claims that appellee failed to plead a common law cause of action, and that it was only on notice of Jones Act or general maritime claims. It also claims that the evidence was insufficient, legally and factually, to support the court's findings and conclusions that appellant failed to prove "subscriber" status under the Texas Workmen's Compensation Act, and legally insufficient to show that appellant failed to comply with notice provisions of such Act. It additionally asserts that no evidence showed that appellee did not have notice of its subscriber status or that appellee gave written notice of his claim for common law rights in lieu of compensation benefits.

Appellee asserts that the phrase, "and any and all other applicable law" in his petition was sufficient to give fair notice that he was pleading, in the alternative to his Jones Act and general maritime causes, a cause of action under any other law that would support a judgment in his favor. We have found no special exceptions in the transcript. A defendant who fails to make a special exception waives any defects in the pleading. See Manufactured Housing Management v. Tubb, 643 S.W.2d 483, 487 (Tex.App.--Waco 1982, writ ref'd n.r.e.); Tex.R.Civ.P. 90, 91. Insufficiency of the pleadings may not be raised for the first time on appeal, and, in the absence of special exceptions, the petition will be liberally construed to support the judgment. Lowther v. Lowther, 578 S.W.2d 560, 562 (Tex.App.--Waco 1979, writ ref'd n.r.e.).

Appellant cites language in Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979). However, Stoner is a default judgment, and Rule 90 states that it does not apply to any party against whom default judgment is rendered. Stoner, 578 S.W.2d at 682; Tex.R.Civ.P. 90.

Moreover, after appellee filed his Fourth Amended Petition containing the disputed language, appellant filed a Second Amended Answer in which a paragraph reads,

A (sic) way of affirmative defense, Defendant affirmatively pleads the Plaintiff, if found to be injured by the acts or omissions of Brown Services, Inc., suffered such injury as by a fellow servant and accordingly his cause (sic) of actions are all barred by the Texas Workers Compensation Act, Article 8306 et seq. of the Texas Revised Civil Statutes Annotated.

This answer reflects an understanding that Texas law was pleaded. Moreover, in discussing the parties' stipulation concerning payments previously made on behalf of appellant for medical and other expenses, appellant's attorney acknowledged that appellee's position was that he was not accepting workers' compensation benefits and it was appellant's position that such payments were in the nature of workers' compensation. While this discussion centered around appellee's claim that he was a seaman, it is clear he was claiming he was not covered under the workers' compensation act. We hold that relief under Texas law was not barred by lack of pleadings.

In support of its claim that the Texas workers' compensation provided the exclusive remedy in this case, Michael D. Brown, president of Brown Services, testified that on the occasion of appellee's injury, a policy of workers' compensation insurance was in effect which covered appellee. Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 3a (Vernon Supp.1989) provides that employees of a subscriber (under Texas Workmen's Compensation) shall have no right of action against their employer for damages for personal injuries, but such employees shall look for compensation solely to the association (i.e. workers' compensation insurance carrier). Appellee points out that Tex.Rev.Civ.Stat.Ann. art. 8308, Sec. 19 (Vernon 1967) provides that every subscriber under Texas Workmen's Compensation Act shall give notice in the manner proscribed by the board (Industrial Accident Board) to all persons under contract of hire that he provides workers' compensation insurance. From the earliest days of the Texas workmen's compensation laws, it was held that an employer who failed to provide proper notice was not a subscriber under the Act. Farmers' Petroleum Co. v. Shelton, 202 S.W. 194, 196 (Tex.Civ.App.--Beaumont 1918, writ ref'd); Kampmann v. Cross, 194 S.W. 437, 440 (Tex.Civ.App.--San Antonio 1917, writ ref'd). This doctrine was reaffirmed as late as 1985 in Ferguson v. Hospital Corporation International, Ltd., 769 F.2d 268 (5th Cir.1985). This...